Skidds v . SSA 05-CV-383-SM 05/24/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Gina M . Skidds, Claimant
v. Civil N o . 05-cv-383-SM Opinion N o . 2006 DNH 060
Jo Anne B . Barnhart, Commissioner, Social Security Administration Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Gina Skidds, moves to reverse the Commissioner’s decision denying
her application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423 (the
“Act”) and Supplemental Security Income Benefits under Title XVI
of the Act, 42 U.S.C. §§ 1381-1383c. The Commissioner objects
and moves for an order affirming her decision. For the reasons
set forth below, the matter is remanded for further proceedings.
Factual Background
I. Procedural History.
In the summer of 2003, claimant filed applications for
disability insurance benefits and supplemental security income
benefits under Titles II and XVI of the Act, alleging that she had been unable to work since May 3 1 , 2003, due to disc disease
of the lumbar spine, chronic lumbar strain, hip and shoulder
bursitis, and anemia. Her applications were denied and she
requested an administrative hearing.
On November 1 8 , 2004, claimant and her attorney appeared
before an Administrative Law Judge (“ALJ”), who considered
claimant’s applications de novo. On February 2 3 , 2005, the ALJ
issued his decision, concluding that claimant retained the
residual functional capacity to perform substantially all of the
full range of sedentary work. Accordingly, he determined that
she was not disabled, as that term is defined in the Act, at any
time prior to the date of his decision.
Claimant then sought review of the ALJ’s decision by the
Appeals Council and, in support of that request, submitted
additional evidence that had not been available at the time of
her administrative hearing: a “Physical Residual Functional
Capacity Questionnaire” prepared by D r . Michael O’Connell, M.D.,
a physician from whom claimant had recently begun receiving
treatment. Administrative Record (“Admin. Rec.”) at 379-83. On
September 1 9 , 2005, however, the Appeals Council denied her
request for review, thereby rendering the ALJ’s decision a final
2 decision of the Commissioner, subject to judicial review.
Claimant then filed an action in this court, asserting that the
ALJ’s decision was not supported by substantial evidence and
seeking a judicial determination that she is disabled within the
meaning of the Act. Subsequently, she filed a “Motion for Order
Reversing Decision of the Commissioner” (document n o . 7 ) . The
Commissioner objected and filed a “Motion for Order Affirming the
Decision of the Commissioner” (document n o . 8 ) . Those motions
are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1(d), the parties have
submitted a statement of stipulated facts which, because it is
part of the court’s record (document n o . 9 ) , need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Findings by the ALJ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
3 Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings of the Commissioner are
conclusive if supported by substantial evidence.1 See 42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Moreover,
provided the ALJ’s findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the adverse position.
See Tsarelka v . Secretary of Health & Human Services, 842 F.2d
529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]
conclusion, even if the record arguably could justify a different
conclusion, so long as it is supported by substantial
evidence.”). See also Rodriguez v . Secretary of Health & Human
Services, 647 F.2d 2 1 8 , 222-23 (1st Cir. 1981).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n., 383 U.S. 6 0 7 , 620 (1966).
4 (citing Sitar v . Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982)). It
is “the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
to the ALJ’s credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services, 829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
Human Services, 803 F.2d 2 4 , 26 (1st Cir. 1986)).
II. The Parties’ Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act
places a heavy initial burden on the claimant to establish the
existence of a disabling impairment. See Bowen v . Yuckert, 482
U.S. 1 3 7 , 146-47 (1987); Santiago v . Secretary of Health & Human
5 Services, 944 F.2d 1 , 5 (1st Cir. 1991). To satisfy that burden,
the claimant must prove that her impairment prevents her from
performing her former type of work. See Gray v . Heckler, 760
F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v . Secretary of
Health & Human Services, 690 F.2d 5 , 7 (1st Cir. 1982)).
Nevertheless, the claimant is not required to establish a doubt-
free claim. The initial burden is satisfied by the usual civil
standard: a “preponderance of the evidence.” See Paone v .
Schweiker, 530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982).
Provided the claimant has shown an inability to perform her
previous work, the burden shifts to the Commissioner to show that
there are other jobs in the national economy that she can
perform. See Vazquez v . Secretary of Health & Human Services,
683 F.2d 1 , 2 (1st Cir. 1982). If the Commissioner shows the
existence of other jobs that the claimant can perform, then the
overall burden to demonstrate disability remains with the
claimant. See Hernandez v . Weinberger, 493 F.2d 1120, 1123 (1st
Cir. 1974); Benko v . Schweiker, 551 F. Supp. 6 9 8 , 701 (D.N.H.
1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
6 medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience. See, e.g., Avery v . Secretary of
Health & Human Services, 797 F.2d 1 9 , 23 (1st Cir. 1986);
Goodermote, 690 F.2d at 6. When determining whether a claimant
is disabled, the ALJ is also required to make the following five
inquiries:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.920. Ultimately,
a claimant is disabled only if her:
physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or
7 whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm her
decision.
Discussion
I. Background - The ALJ’s Findings.
In concluding that M s . Skidds was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step sequential evaluation process described in 20 C.F.R. §§
404.1520 and 416.920. Accordingly, he first determined that she
had not been engaged in substantial gainful employment since her
alleged onset date of May 3 1 , 2003. Next, he concluded that
claimant suffers from “disc disease of the lumbar spine; chronic
lumbar strain; hip and shoulder bursitis; and dysmenorrhea,
impairments that are ‘severe’ within the meaning of the
Regulations.” Admin. Rec. at 2 3 . Nevertheless, the ALJ
determined that those impairments, regardless of whether they
were considered alone or in combination, did not meet or
8 medically equal any of the impairments listed in Part 4 0 4 ,
Subpart P, Appendix 1 . Id.
The ALJ next concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
substantially all of the requirements of sedentary work.2 He
also determined that, notwithstanding claimant’s complaints of
pain and fatigue, her capacity for sedentary work was
“substantially intact and has not been compromised by any non-
exertional limitations.” Admin. Rec. at 2 8 . At step four of the
analysis, the ALJ concluded that, in light of claimant’s ability
to perform only sedentary work, she was incapable of returning to
any of her prior jobs. Admin. Rec. at 2 6 .
2 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184 at *2 (July 2 , 1996) (citation omitted).
9 Finally, the ALJ considered whether there were any jobs in
the national economy that claimant might perform. Relying upon
the Medical-Vocational Guidelines, 20 C.F.R. p t . 4 0 4 , subpt. P,
App. 2 , tables 1-3, (also known as the “Grid”), he concluded
that, given claimant’s ability to perform substantially all of
the requirements of sedentary work, and considering her age,
education, and work experience, she “retains the capacity to
adjust to work that exists in significant numbers in the national
economy.” Admin. Rec. at 2 7 . Consequently, the ALJ concluded
that claimant was not “disabled,” as that term is defined in the
Act, at any time through the date of his decision.
In support of her motion to reverse the decision of the
Commissioner, claimant advances three arguments. First, she
asserts that the ALJ failed to consider her non-exertional
limitations (pain and fatigue) and, therefore, erred by relying
on the Grid rather than securing the opinion of a vocational
expert. Next, she says the ALJ failed to adequately explain the
basis for his decision to discount the credibility of claimant’s
assertions of disabling pain. And, finally, she claims the
Appeals Council erred in failing to discuss newly submitted
evidence that was presented to i t , but not the ALJ (i.e., the new
Residual Functional Capacity Questionnaire completed by D r .
10 O’Connell). In the alternative, she says because the new
evidence is material and there was good cause for her failure to
present it to the ALJ, the court should remand this matter
pursuant to sentence six of 42 U.S.C. § 405(g). Because the last
of claimant’s three arguments has merit, the court need not
address her other claims.
II. New and Material Evidence.
In the physical residual functional capacity questionnaire
that he completed on behalf of claimant, D r . O’Connell opines,
among other things, that:
1. Claimant’s pain and other symptoms would be severe enough to interfere with her attention and concentration “frequently” during a typical work day;
2. Claimant is capable of sitting for only about 10-15 minutes and standing for about 10 minutes before needing to change positions and/or walk around;
3. During the course of a typical work day, claimant could stand/walk for a total of less than two hours, and sit for a total of approximately two hours;
4. Claimant would need to take unscheduled breaks approximately each hour, lasting about 10 minutes, before she could return to work;
5. As a result of her impairments, claimant would likely miss work more than four days each month; and
11 6. Claimant’s impairments have existed since her alleged onset date of May 3 1 , 2003.
Admin. Rec. 379-83. Based upon those opinions of her treating
physician (which were never presented to the A L J ) , claimant
asserts that this matter should be remanded, so the ALJ may
reconsider his adverse decision in light of a more complete and
comprehensive record.
In this circuit, there are two circumstances under which a
social security matter may be remanded based upon new evidence,
absent the consent of the Commissioner. The first is when new
evidence is presented to the Appeals Council and the council
refuses to grant review based upon an “egregiously mistaken
ground.” Mills v . Apfel, 244 F.3d 1 , 5 (1st Cir. 2001). But,
when the Appeals Council gives no detailed reason for its refusal
to grant review, that decision is “effectively unreviewable.”
Id. at 6. In this case, while the Appeals Council acknowledged
the new evidence presented by claimant, it gave no detailed
reason(s) for its refusal to grant review. Admin. Rec. at 9-12.
Consequently, the court cannot conclude that its administrative
decision “rests on an explicit mistake of law or other egregious
error.” Mills, 244 F.3d at 5 .
12 Alternatively, the court may remand a matter pursuant to
sentence six of 42 U.S.C. § 405(g). To be entitled to a remand
under that statutory provision, however, a claimant must
demonstrate that “there is new evidence which is material and
that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” Id. See also
Evangelista v . Secretary of Health & human Services, 826 F.2d
136, 139-43 (1st Cir. 1987). Evidence is “new” if it was “not in
existence or available to the claimant at the time of the
administrative proceeding.” Sullivan v . Finkelstein, 496 U.S.
6 1 7 , 626 (1990). It is “material” if the ALJ might reasonably
have rendered a different decision if it had been presented to
him. Evangelista, 826 F.2d at 140. See also Woolf v . Shalala,
3 F.3d 1210, 1215 (8th Cir. 1993) (“To be material, new evidence
must be non-cumulative, relevant, and probative of the claimant’s
condition for the time period for which benefits were denied, and
there must be a reasonable likelihood that it would have changed
the [Commissioner’s] determination.”) (citations omitted); Rufino
v . Apfel, 2 F. Supp. 2d 479, 484-85 (S.D.N.Y. 1998) (“the Second
Circuit has identified a three-prong test that a [claimant] must
meet to satisfy these criteria: (1) the evidence is new and not
merely cumulative, ( 2 ) the evidence is material, meaning it is
both relevant to [claimant’s] condition during the time period
13 covered by the decision and it could have affected the decision
had it been presented earlier, and ( 3 ) there is good cause for
not having presented this new evidence earlier.”) (citation
omitted and internal punctuation omitted).
The evidence at issue in this case - the Physical Residual
Functional Capacity Questionnaire prepared by D r . O’Connell -
meets each of the requirements of section 405(g). First, it is
undeniably “new”; it was not prepared until April 2 8 , 2005, more
than two months after the ALJ issued his decision. It is also
“material” insofar as it directly bears on the dispositive issue
in this case: whether claimant retains the RFC for sedentary
work, as well as the related question concerning the nature and
extent of her alleged non-exertional limitations. And, finally,
there is plainly “good cause” for claimant’s failure to present
the report to the ALJ - she did not begin treatment with D r .
O’Connell until after the ALJ issued his decision and D r .
O’Connell’s report was not prepared until approximately two
months after that. See e.g., Cannon v . Bowen, 858 F.2d 1541,
1546 (11th Cir. 1988) (“The evidence in this case satisfies all
three requirements. It is clearly new, noncumulative evidence
because it includes an opinion of total disability from a
treating physician and a vocational expert. No similar evidence
14 is introduced in the administrative record. [Claimant’s]
treating physician during this recent hospitalization speculated
that his physical limitations related back to May 1985, the date
of the alleged onset of disability. Such evidence, if not
discredited by the [Commissioner], is material and could change
the administrative result. Finally, there is good cause for
failing to present the evidence because it did not exist at the
time of the administrative hearing or the district court
proceedings. Thus, [claimant’s] motion to remand is granted and
the [Commissioner] should consider [claimant’s] new evidence when
it reconsiders his case.”) (citation omitted); Baran v . Bowen,
710 F. Supp. 5 3 , 56 (S.D.N.Y. 1989) (“Because the reports were
written after the administrative hearing took place, there is
good cause for failure to incorporate them in the earlier
proceeding.”).
In light of the foregoing, the court concludes that remand
under sentence six of 42 U.S.C. § 405(g) is appropriate. The
newly presented evidence reflects directly on claimant’s ability
to engage in substantial gainful activity and, if not effectively
refuted or legitimately discounted by the Commissioner, suggests
that she is totally disabled. Accordingly, principles of
fairness counsel in favor of affording claimant the opportunity
to present this evidence to the Commissioner so she might render
15 her decision based upon a more complete and thorough
understanding of claimant’s impairments and their effect on her
ability to perform work-related activities.
Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that it is appropriate to remand this matter for
further consideration. While the ALJ plainly cannot be faulted
for having rendered his decision without the benefit of evidence
that was never presented to him, claimant has demonstrated that
the report prepared by D r . O’Connell is both new and material.
She has also shown good cause for failing to present it in a more
timely manner.
For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document n o . 7 ) is granted to the
extent she seeks a remand for further proceedings. The
Commissioner’s motion to affirm her decision (document n o . 8 ) is
denied.
Pursuant to Sentence Six of 42 U.S.C. § 405(g), this matter
is hereby remanded for further proceedings consistent with this
16 order. The Clerk of Court shall administratively close the case
but, for purposes of the Equal Access to Justice Act, 28 U.S.C.
§ 2412, the court shall retain jurisdiction over this proceeding.
Accordingly, the parties shall keep the court apprised of further
developments.
SO ORDERED. ^ ^ v
Steven J . McAuliffe United States District Judge
May 24, 2006
cc: Maureen A. Howard, Esq. David L. Broderick, Esq.